Constitutional complaint against DNA sample for future prosecution successful

The Federal Constitutional Court has laid down guidelines for the clear enforcement of existing fundamental rights guarantees in criminal prosecution using DNA samples. In a ruling published on Wednesday, 12 August, it emphasises that ordering a DNA sample to establish identity is an infringement of the fundamental right to informational self-determination. The measure must therefore be proportionate and based on comprehensibly documented facts (case reference: 2 BvR 530/25).

The judges in Karlsruhe also clearly criticise the specialist courts and set the course for their practice. They emphasise that they must take the significance of the interference caused by the identification and storage of a DNA pattern seriously and must deal intensively with current, exonerating circumstances such as a probation history.

Complaint against negative prognosis

In the case, a suspect lodged a constitutional complaint against decisions made by the Hildesheim Local Court in particular, which had ordered the removal and molecular genetic analysis of body cells to determine his DNA identification pattern for future criminal proceedings in accordance with Section 81g of the German Code of Criminal Procedure (StPO). The complainant had previously been sentenced to a suspended prison sentence for causing grievous bodily harm. It was assumed that criminal proceedings of considerable importance would have to be brought against him again in the future (so-called negative prognosis).

The person concerned considered the court's prognosis to be insufficiently substantiated. He demanded that his fundamental right to informational self-determination be respected and that his current life situation and unblemished probation history be taken into account. The regional and district courts rejected the petition and based the negative prognosis on the nature and execution of the violent offences and the personality of the convicted person.

Clear message from Karlsruhe

The Federal Constitutional Court accepted the constitutional complaint and has now upheld it. It cancelled the contested orders and referred the case back to the district court. According to the judgement of the highest court, the lower courts failed to include the probation booklets. This meant that relevant circumstances such as the probation officer's current report were not included in the assessment. However, the prognosis had to be based on a sufficient clarification of the facts.

The Karlsruhe judges criticised that the regional court had already failed to sufficiently assess the positive social prognosis on which the suspended sentence was based. In the case of contrary predictions, a greater depth of reasoning is required. However, the specialist courts had not been able to demonstrate any special circumstances that would justify the assumption of future significant offences despite the positive probation history.

A further criticism was that the judges issuing the orders had not taken sufficient account of the fact that the offences in question had been committed almost four years previously and why the sentences imposed at the time had been suspended. A blanket reference to previous convictions did not fulfil the constitutional requirements for the risk prognosis.

Overall, with this decision, the competent 2nd Senate consistently applies the strict constitutional standards in this sensitive area. At the same time, it forces the specialised courts to take a more qualitative approach to informational self-determination.

(mki)